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Saturday, September 29, 2012

Blocking of Websites under the Information Technology Act

I received a few queries recently on the law regarding blocking of
websites and remedies under the law against blocking. These queries were in the
wake of the government's recent directions to block twitter handles of prominent
journalists and commentators who were critical of the government's policies. I had an opportunity to address the issue in
another forum last month. This post reiterates the broad points addressed by me
in that forum.

Under the Constitution, the Government
cannot muzzle free speech except if a reasonable restriction is imposed in
order to preserve the sovereignty and integrity of the country, national
security, friendly relations with foreign States, public order, decency or
morality, or in relation to contempt of court, defamation or incitement to an
offence (Article 19(2) of the Constitution)

MECHANISM UNDER THE IT ACT TO BLOCK WEBSITES

Below is Section 69A of the Information
Technology Act, 2000, which was inserted in the Act through the Information
Technology (Amendment) Act, 2008 (availablehere):

“69A. (1) Where the Central Government or any of its
officer specially authorised by it in this behalf is satisfied that it is
necessary or expedient so to do in the interest of sovereignty and integrity of
India, defence of India, security of the State, friendly relations with foreign
Statesor
public order or for preventing incitement to the commission of any cognizable
offence relating to above, it may subject to the
provisions of sub-section (2), for reasons to be recorded in writing, by order,
direct any agency of the Government or intermediary to block for access by the
public or cause to be blocked for access by the public any information
generated, transmitted, received, stored or hosted in any computer resource.

(2)The procedure and safeguards subject to which such blocking for
access by the public may be carried out, shall be such as may be prescribed.

(3) The intermediary who fails to comply
with the direction issued under sub-section (1) shall be punished with an
imprisonment for a term which may extend to seven years and also be liable to
fine.”

A reading of Sub-section (1) of Section 69
informs us that the provision may be invoked to preserve public order or to
prevent incitement to the commission of any cognizable offence which relates to
the areas mentioned in the provision.

The procedure for blocking of websites referred to in Sub-section
(2) of Section 69 was notified in October 2009. This was called Information
Technology (Procedure and Safeguards for Blocking of Access of Information by
Public) Rules, 2009 (availablehere).

In cases of emergency, the Govt may invoke
Rule 9 of the Blocking Rules which is titled “Blocking of Information
in cases of Emergency”.

Under Rule 9, a request is made by any
govt department or agency to theDesignated
Officer (click the hyperlink to check the relevant notification on
Designated Officer) under the Rules asking for blocking of information. The
Designated Officer evaluates the request and forwards it to Secretary of the Department
of Information Technology with his recommendations.

Upon receipt of the request and
recommendations from the Designated Officer, if the Secretary, DIT is of the
opinion that the information must be blocked, he issues an appropriate interim
order to an intermediary such as an internet service provider or web-hosting
service provider. The interim order could be to block the website/information
which is deemed harmful.

Critically, under the Rules, Neither the intermediary nor the owner of the
information/website needs to be heard before the interim order for blocking is
issued.

Within 48 hours of the interim order
directing blocking of the website, the Designated Officer must place the
request for blocking of the website for final determination before a Committee
consisting of the Designated Officer, representatives from Law Ministry, Home
Affairs and Information & Broadcasting and the Indian Computer Emergency
Response Team.

In the meantime, the Designated Officer must issue notice to the
intermediary against whom the interim order was passed, giving the intermediary
at least 48 hours from the receipt of the notice to appear before the
Committee.

The Committee considers the defense/reply
offered by the intermediary with respect to the blocked information, after
which the Committee forwards its recommendations to the Secretary, DIT. Based
on the recommendations, the Secretary may issue final orders for blocking of
the information.

This, in a nutshell, is the procedure the
Govt is expected to follow when a website is blocked in cases of emergency.

HOW CAN INTERMEDIARIES/WEBSITES CHALLENGE
THE BLOCKING OF INFORMATION?

Under the Information Technology Act,
there is a Cyber Appellate Tribunal which sits in appeal over certain orders
passed under the Act. Section 57 of the Act tells us which orders may be
appealed before the Tribunal. However, an order under Section 69A does not
appear to fall within Section 57.

Simply put, there does not appear to be a
provision for appeal before the Tribunal against orders of blocking of
information passed under Section 69A. The only option that aggrieved intermediaries
or websites have is to approach High Courts challenging the decision of the
Secretary, DIT in a Writ Petition filed under Article 226 of the
Constitution.Comments and Corrections are Welcome!

3 comments:

I am a forensic investigator at a private firm. I need to access the blocked websites to support my client's investigation. Is accessing the blocked sites using proxy or other means punishable to common users?